New Jersey maintains a strong public policy in protecting employees who speak out against the employer’s for engaging in unlawful business activities. The law recognizes that employers are responsible when they try to silence and hurt persons who oppose workplace conduct or activities that endangers people in the workplace and the public at large. However, while New Jersey law clearly provides for immense legal protections for employees against workplace retaliation, this does not mean anyone who is fired for complaining to his or her employer will be successful in a claim for wrongful termination.
New Jersey first enacted its state whistleblower law, the New Jersey’s Conscientious Employee Protection Act (“CEPA”) in 1986. CEPA is broad in scope and considered as one of the farthest reaching state whistleblower laws in the entire country. CEPA is remedial legislation and is entitled to liberal construction by our courts.
Under of New Jersey’s whistleblower law, a worker cannot be terminated for opposing or refusing to participate in unlawful or certain other improper conduct of the employer. By placing stiff penalties upon employers who violate the whistleblower law, the New Jersey anti-retaliation statute tries to discourage employers from engaging in illegal or unethical workplace activities. The state law applies to private and public employers and employees. It also can apply to independent contractors in certain circumstances depending on the specific facts and circumstances of the business relationship.
An employee is considered “blowing the whistle” for purposes under CEPA when they:
- disclose or threaten to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, or a rule or regulation
- disclose or threaten to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care;
- disclose or threaten to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is fraudulent or criminal;
- Provide information to or testify before, any public body conducting an investigation, hearing or inquiry into any violation of law; and
- Object to or refuse to participate in any activity, policy or practice which the employee reasonably believes is in violation of law, fraudulent, criminal and incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
What exactly is disclosed or communicated by the whistle-blowing employee is critical in determining of whether he or she engaged in protected activity. An aggrieved employee is not required to prove that a law, rule, regulation or clear mandate of public policy was or would be actually violated if all the facts he or she alleges are true. Instead, the aggrieved employee must prove facts that would support an objectively reasonable belief that a violation occurred. Courts have made clear that the law is not to make lawyers out of conscientious employees, but instead to prevent retaliation against those who object to his or her employee about a business activity that they reasonably believe to be unlawful or dangerous.
In situations in which the employee is complaining about unlawful workplace discrimination, the employee may elect to file a claim under the New Jersey Law Against Discrimination anti-retaliation provision instead of CEPA. There were traditionally two categories of employee activity that are “protected” under the New Jersey Law Against Discrimination’s retaliation provision: opposing practices or acts that are unlawful under the Law Againt Discrimination, i.e., complaining about or protesting against discrimination in the workplace and filing a complaint or testifying or assisting in any proceeding under the discrimination law. However, as part of the New Jersey Equal Pay Act, the Law Against Discrimination’s anti-retaliation provision was further broadened to include protections to employees for discussing or disclosing information relevant to wage discrimination with to another employee, a lawyer or governmental agency.
With both of these New Jersey anti-retaliation laws, the aggrieved employee must prove that they suffered adverse employment action as a result of engaging in the protected activity. While the termination of employment is the easiest and most straightforward form of adverse employment action, it is not the only way an employer can unlawfully retaliate against an employee. There is no exhaustive list ofwhat constitutes an adverse employment action and can include such things as a demotion, cut in salary or benefits, a refusal to promote, or disciplinary action. Adverse employment action can also be shown through many separate, but relatively minor, instances of behavior directed against an employee that may not be actionable individually, but that combine to make up a pattern of retaliatory conduct.
CEPA and the Law Against Discrimination are not the only New Jersey state laws that prohibit retaliation, but they do offer some of the strongest protections and stiffest penalties against employers who choose to retaliate against whistleblowers. New Jersey law rightfully recognizes the vital importance whistleblowers have in keeping the work environment and the public at large safe from companies engaging in unlawful business activities. While nobody ever chooses to be in a situation in which they have to blow the whistle at their employer, it is helpful to know that New Jersey provides for some of the strongest protections in these unfortunate workplace circumstances.